(a) Whether any area of land or trees was or were defined or identifiable as being the respondent's land or trees
165 His Honour dealt with this matter in paras [43]-[46] and [68]-[70] of his reasons. First, he referred to the Commissioner's submission that the board of directors of the Land Company had power under Article 4(3)(b) to "relocate a member's Farm" to such positions on the land as it might in its absolute discretion determine.
166 His Honour noted that there was no evidence that the board had exercise that power. He expressed the view that he did not consider the existence of the power alone resulted in any lack of identification of the respondent's Farm.
167 The evidence before his Honour, as he observed, was that the documentation provided for the identification of a member's Farm and this had occurred in the case of the respondent. His Honour referred to the evidence of the respondent and a Mr Lindhout as supporting that finding. He noted that identification was in any event "a necessary concomitant of the exercise of the right of any member to self-manage the farm or to appoint a contractor to do so".
168 His Honour, at paras [68]-[70] referred to evidence that the respondent's Farms were identifiable from a map, in the sense that (according to Mr Lindhout's evidence which the primary judge appears to have accepted) one could probably work out from the scale of the map and the positioning of the farm exactly where it was on the ground. The respondent's evidence was that he knew roughly where his farm was, had driven within ten metres of it, and was able to see that trees had not died and were healthy.
169 Finally, his Honour referred to two decisions of Full Courts of this Court for the proposition that even if the respondent's Farm could not be identified, that would not mean or support the inference that no business was being carried on.
170 The first was Federal Commissioner of Taxation v Lau (1984) 6 FCR 202. That case concerned an area of pine plantation land described as being "approximately 14 hectares" and as Lot number 16 in the schedule, but there was not any effective subdivision nor any delineation of that, or any other lot in the area (see p 204).
171 At p 207 Fox J said this:
'The early lack of definition of the land is not in my view of any consequence. It was intended that the subject area be defined, and this was in fact done, although not in the same taxation year. It can hardly be said that the rent was anything else but a payment for the use of the land to be used for the growing of pine trees for the taxpayer.'
172 Jenkinson J agreed with both the reasons given by Fox J and, the third judge in the appeal, Beaumont J.
173 At p 220, Beaumont J observed that it was common ground that, taken alone, the lease instrument did not sufficiently identify the leased premises. His Honour added:
'It would seem that, at an uncertain later date, the taxpayer's area was identified as Lot No 16. There can be little doubt that, considered as at 23 April 1981 [the date of the lease - see p 212] and subsequently, there was vested in the taxpayer equitable proprietary rights in respect of the area to be planted or, at the least, equities, by virtue of which he could have proceeded to protect his interest in the land. Whether these rights or equities were in the nature of a leasehold interest or by way of a profit ŕ prendre need not be pursued here … Taking the worst position from the taxpayer's standpoint, even if the moneys in question were laid out by him in connection with no more than a de facto lease, the expenditure was nonetheless incurred in what the learned judge found to be a genuine commercial context. Given the business character of the expenditure, any failure of the taxpayer to perfect his title to the premises could not, in my view, disqualify the taxpayer from claiming the outgoings as allowable deductions.'
174 In Commissioner of Taxation v Emmakell (1988) 22 FCR 157, the second of the two decisions relied upon by the primary judge, the taxpayer had entered into written agreements, purporting to be leases, relating to a total area of six acres upon which tea trees were planted. The lease was invalid on grounds which included a failure to identify the particular area leased and a failure to comply with legal requirements for a separate lease of any such area (see p 161).
175 The Full Court unanimously held that Lau was relevantly indistinguishable and was to be applied. At p 163 the Full Court said this:
'The written submissions of the appellant acknowledged that the "lease" and the management agreement must, in the present case, be read together. This concession was rightly made, for the two documents are so framed as to be interdependent. But the appellant's difficulty was then to distinguish Lau. The only distinction put forward in argument was a contention that, whereas in Lau the taxpayer carried on his own business, although through the agency of the manager, in the present case the business was carried on by the manager on its own behalf, being a business in the profits of which the respondent became entitled to share as an investor. But this argument flies in the face of the express findings by the Tribunal that the enterprise was conducted by Austral "qua manager". In any case, once the Tribunal accepted the documents as real and as not being shams, upon their true construction, the conclusion that Austral was carrying on the business of a manager only was a conclusion that followed as a matter of law. The documents plainly envisaged that particular areas of plantation, if not already identified, would be identified as the respondent's leased areas and would be managed on his behalf.'
176 In my view, there is no substance in this particular complaint. On the facts as found by his Honour and the law explained in Lau and Emmakell, he was, in my respectful view, quite correct to reject this submission.